The share of a mother in the ancestral property held by her son is to be taken into consideration while determining the son's holding under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961.

JUDGMENT - M.P. KANADE, J.:---This petition under Article 227 of the Constitution of India is filed challenging the order passed by the Maharashtra Revenue Tribunal dated May 26, 1976.

2. The proceedings arise out of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, (hereinafter for brevitys sake referred to as the Ceiling Act). The petitioner is a holder of certain lands. He filed a return under section 12 of the Ceiling Act showing the lands standing in his name and contended that the land Survey No. 210 cannot be classified under section 2(5)(b) of the Ceiling Act. He further contended that the mother was entitled to a share in the family property. Entire agricultural lands are ancestral properties, and therefore, the mother will be entitled to a share.

3. The Land Determination Tribunal No. 1 at Kopargaon, District Ahemadnagar made inquiries and after considering the evidence on the record came to the conclusion that the petitioners holding comes to 30 Acres 20 Gunthas only. It was further revealed in the inquiry that a sugarcane block of 10 Acres 20 Gunthas is available to the petitioner. The Surplus Land Determination Tribunal converted the agricultural land into dry lands and came to the conclusion that the total holding thus converted in terms of dry crop area is 65 acres 18 gunthas. In the result, by an order and judgment dated February 27, 1976, the petitioner was declared surplus holder of an area of 10 acres 34 gunthas, and while considering the choice for retention of land, the Tribunal ordered 10 acres 34 gunthas, to be delimited from Survey No. 206/1+ 2 from Village Rahata, held by the petitioner.

4. The petitioner feeling aggrieved by the aforesaid judgment and order passed by the Surplus Land Determination Tribunal, preferred an appeal to the Maharashtra Revenue Tribunal. The said appeal was also dismissed by a judgment and order dated May 26, 1976. The petitioner has filed the present Special Civil Application challenging the said order under Article 227 of the Constitution of India.

5. Mr. Bhadti, the learned Counsel appearing on behalf of the petitioner, submitted that both the authorities below committed an error apparent on the face of the record in refusing to consider the share of the mother of the petitioner. Mr. Tipnis, who appears on behalf of the State, strenuously argued that the mother had no right in the property left by her husband. The petitioners father died in the year 1928 or thereafter, and therefore, she had only a right of maintenance and she could not have a share in the ancestral property of the petitioner. Mr. Tipnis also contended that there is clear admission made by the petitioner that the lands are getting the benefit of the canal water, and therefore, both the authorities rightly held that the lands are liable to be converted into dry land area and the conversion made thereof is perfectly valid.

6. There is no dispute that the mother of the petitioner is alive and the property held by the petitioner is ancestral property. Under the provisions of section 3(3)(i) it is laid down that in the land held by a family of which the person is a member, the share of each member of the family shall be determined so that each member who is entitled to a share on partition, shall be taken to be holding separately land to the extent of his share as if the land had been so divided and separately held on the relevant date. The Surplus Land Determination Tribunal will have to consider as to whether the mother of the petitioner is a member of the family. Secondly, it will have to consider as to whether she had a share in the joint family property, and thirdly if they are joint sharers then a partition has got to be effected in accordance with the provisions of Hindu Law and the shares will have to be determined under the provisions of section 3(3)(i) of the Ceiling Act. There is no dispute that the petitioners mother is a member of the family. There is likewise no dispute that if a

Click Here to Read the rest of this document